Tilak Raj and Others Vs Mahinder @ Mobinder Kakkar and Anr.

Defendant Nos.1 to 3 are before this Court in the present Regular Second Appeal assailing the concurrent findings recorded by both the Courts below, whereby the suit filed by the plain&ff seeking permanent injunc&on and separate possession by way of par&&on by metes and bounds of his 1/5th share in the suit property was decreed by the learned trial Court vide judgment and decree dated 05.05.2016, and the appeal preferred by the defendants was dismissed by the learned First Appellate Court on 07.07.2025.

¶13

The dispute between the par&es relates to a shop fully described in the plaint. The plain&ff, defendant Nos.1 and 2 are the sons of Lal Chand, defendant No.3 is his wife and defendant No.4 is the daughter. The case set up by the plain&ff was that the par&es jointly purchased the shop in ques&on vide registered sale deed dated 17.07.2002 and thereby became co-owners to the extent of 1/5th share each. It was pleaded that despite such co-ownership, the plain&ff was excluded from enjoyment of the property and was compelled to ins&tute the present suit seeking

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RSA-3995-2025 (O&M)

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par&&on and separate possession of his share.

¶18

The defendants contested the suit by asser&ng that the shop was in exclusive possession of defendant Nos.1 and 2, as the plain&ff had relinquished his share pursuant to an oral family se8lement arrived at in the presence of witnesses and that he had received due compensa&on. It was further pleaded that the plain&ff had been permi8ed to reside in the house of defendant No.3 as a licensee and when he was asked to vacate the same, the present suit was ins&tuted as a counter-blast.

¶19

Upon considera&on of the pleadings and evidence, the learned trial Court decreed the suit. The trial Court held that the registered sale deed No. 2473 dated 17.07.2002 (Ex.P2) conclusively established the plain&ff’s 1/5th share in the suit property. The trial Court further no&ced that in earlier li&ga&on between the par&es culmina&ng in judgment dated 05.05.2016 (Ex.P1), the plain&ff’s share in the shop stood recognised. The plea of oral se8lement was rejected on the ground that the defendants failed to prove the same by reliable evidence.

¶20

Aggrieved against the said decree, the defendants preferred an appeal, which came to be dismissed by the learned First Appellate Court. The Appellate Court examined the conten&on of the defendants that the present suit was barred by the principle of res judicata on account of the earlier judgment dated 05.05.2016 and rightly held that the said plea was untenable. It was observed that in the earlier suit, the plain&ff had sought possession of his share a>er alleging exclusion from the shop and had not sought par&&on by metes and bounds. The earlier decree itself clarified that the plain&ff would be at liberty to avail appropriate legal remedy for obtaining a specific por&on in the shop. Consequently, the cause of ac&on in the present suit being dis&nct, the bar of res judicata was held to be inapplicable.

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-3-

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RSA-3995-2025 (O&M)

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The First Appellate Court further affirmed the finding that the sale deed Ex.P2 proved the joint purchase and ownership of the par&es and that the defendants had failed to establish relinquishment of the plain&ff’s share. The Appellate Court no&ced that neither the date nor par&culars of the alleged oral se8lement were disclosed in the pleadings and no independent witness to the se8lement was examined. The tes&mony of DW-1 was found vague and insufficient to prove dives&ng of proprietary rights of the plain&ff. The Appellate Court, therefore, upheld the decree of par&&on passed by the trial Court.

¶25

Learned counsel for the appellants has contended before this Court that relinquishment through an oral family se8lement is legally permissible and that the Courts below erred in discarding the defence set up by the defendants. It has also been argued that the suit was barred by res judicata.

¶26

Having heard learned counsel and perused the record, this Court finds no merit in the appeal. The scope of interference in a Regular Second Appeal under Sec&on 100 CPC is confined to substan&al ques&ons of law. Concurrent findings of fact recorded by the Courts below cannot be interfered with unless shown to be perverse, based on misreading of evidence or resul&ng from applica&on of an incorrect legal principle.

¶27

In the present case, the ownership of the plain&ff to the extent of 1/5th share stands proved from the registered sale deed and such finding has been concurrently recorded. The plea of res judicata has been rightly rejected, as the earlier suit merely recognised the plain&ff’s share and granted joint possession while reserving liberty to seek par&&on. A suit for par&&on cons&tutes a dis&nct and recurring cause of ac&on and is not barred merely because the share of the par&es was earlier declared.

¶28

As regards the plea of oral se8lement, though a family

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RSA-3995-2025 (O&M)

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arrangement may be oral, the party asser&ng relinquishment of proprietary rights is required to establish the same by cogent and reliable evidence. In the present case, both the Courts below have concurrently found that the defendants failed to discharge the burden of proving the alleged se8lement. No par&culars of the se8lement were pleaded, no independent witness was examined and the evidence led was wholly insufficient to establish relinquishment of the plain&ff’s share. Such findings are purely findings of fact and do not call for interference in second appeal.

¶33

It is also well se8led that mere exclusive possession of some co-owners does not amount to ex&nguishment of the rights of another coowner unless ouster or relinquishment is clearly proved. The plain&ff having established his co-ownership was en&tled to seek par&&on as a ma8er of right.

¶34

In view of the above discussion, no substan&al ques&on of law arises for considera&on in the present appeal. The concurrent findings recorded by the Courts below are based on proper apprecia&on of evidence and do not suffer from any illegality or perversity warran&ng interference.

¶35

Consequently, the present Regular Second Appeal is dismissed. All pending miscellaneous applica&on(s), if any, also stand disposed of.

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	(D	EEPAK GUPTA) JUDGE
February 20, 2026
Nee&ka Tuteja
Whether Speaking/reasoned	Yes/No
Whether Reportable	Yes/No

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Tilak Raj and Others v. Mahinder @ Mobinder Kakkar and Anr.

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Tilak Raj and Others v. Mahinder @ Mobinder Kakkar and Anr.

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